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March 07, 2000 03:10pm
Child Pornography or Innocent Photography?
Source: APBnews.com
by: Amy Worden

(OBERLIN, Ohio) -- Since her "miracle" daughter was born eight years ago after several miscarriages, friends say Cynthia Stewart followed her everywhere with a camera, taking thousands of photographs for family albums.

Last summer, a roll of film containing several shots of Stewart's daughter in the bathtub were seized by employees at a photo lab who decided they were "pornographic" and turned them over to police.

Today Stewart, 48, faces criminal child-endangerment charges, and whether the family needs state supervision is the subject of a parallel court case.

Hundreds of miles away, a 65-year-old New Jersey grandmother was arrested earlier this month on similar charges -- for taking nude photographs of her young granddaughters.

'Crossed the line of decency'

The two cases illustrate the gaping divide between what some consider innocent baby-on-the-bearskin-rug snapshots and others see as child pornography.

Law enforcement officials in both states said the two women "crossed the line of decency" by making images of young girls in what they called provocative poses.

Supporters argue the women are serious photographers and are being persecuted by a system paranoid about sexual exploitation. They say the charges are the result of overzealous prosecution of ambiguous pornography laws that have created a climate in which all parents are potential pedophiles.

"It's the witch hunt of the 21st century," said Amy Wirtz, a lawyer representing Stewart, whose photos included pictures of her 8-year-old daughter in the bath. "They persecute parents out of fear of pedophiles."

Police chief thinks of his daughters

Marian Rubin, a veteran school social worker and professional photographer who lives in Montclair, N.J., was arrested after images of her granddaughters, ages 4 and 6, were given to police by employees of a photo lab.

Montclair Police Chief Thomas Russo said he ran the photos through a pornographic litmus test, and Rubin failed.

"I'm a father of three daughters, and I ask myself if those were my daughters at that age would I be upset, and the answer was yes," Russo said. "I think we've acted appropriately."

He said the girls are "in a naked state [in all the images] and in a number of poses the genitalia is evident."

Innocent parents may be prosecuted

A spokeswoman for the Essex County Prosecutor's Office would not comment on the Rubin case because it is before a grand jury, but she said the photographs met the statute for prosecution because they "depicted nudity for sexual gratification."

The two cases illustrate an American paradox, say parents' rights supporters and civil liberties groups -- a culture that sexualizes youth and at the same time is so fearful about child pornography and child abuse that innocent parents are persecuted.

"They are completely harmless, and not obscene or in any way provocative," said Lynn Powell, a friend of Stewart's who has seen the photographs and testified on her behalf. "Only someone with the most contaminated imagination could construe these as pornographic."

Stewart, a school bus driver, was charged with illegal use of a child in nudity-oriented material and pandering sexually explicit material. She is scheduled for trial on the criminal charges in May, but a separate case over whether the family needs state supervision currently is being appealed. A magistrate ruled earlier this month in favor of prosecutors who argued that the family needed state supervision.

Described as loving mother

But friends of Stewart's, who have raised $30,000 for her defense and held several rallies to show the town's support, describe her as a loving mother and active amateur photographer whose goal was to capture images of her only daughter growing up.

They say the controversial photos, most of which show the girl from the waist up rinsing herself with a showerhead, innocently document the stages of taking a bath.

Stephen Kobasa, who has known Stewart for several decades and sent a contribution to her defense fund, said, "To think something of beauty would be some tawdry exercise in pornography is extremely unnerving."

The American Civil Liberties Union (ACLU) of Ohio filed a friend-of-the-court brief on Stewart's behalf attacking the state law used to prosecute her as "so vague and overbroad" that it puts all Ohio parents who take innocent photos of their children at risk.

"What prosecutors in Lorain have done is to pass judgment on a family and prosecute them under laws that are meant to protect children -- not destroy families -- for photos that, when viewed objectively, are not sexual in any way," said Christine Link, executive director of the ACLU of Ohio.

Ads said to sexualize youngsters

Since December, contributions to Stewart's defense fund flowed in from around the world after a supportive article appeared in The Nation blaming the media and overzealous law enforcement officials for creating the hysteria.

"There is a gradual building of panic about sex," said Katha Pollitt, a columnist for The Nation, who wrote in support of Stewart, a longtime friend. She pointed to the child-care scandals of the 1980s as contributing to the rising climate of fear about child sexual abuse.

But Pollit said she finds it ironic that society sexualizes children at younger ages while at the same time trying to impose increasingly strict moral codes.

"We have ads with children posing in gold lame bikinis -- at the same time, we are demonizing the taking of pictures of children," she said.

Obscenity is subjective

But others say the thriving pornography industry, especially the proliferation of child pornography on the Internet, is cause for concern.

"The most profitable is the pornography industry," said Robin Whitehead, a lawyer for Morality in Media, a group concerned with obscenity in the mainstream media. "This is no unfounded fear."

But Whitehead conceded that determining whether an image is pornographic is "a judgment call."

"If it's of a little kid running around a swimming pool naked, anyone would agree that's not [pornographic]. It must be for the purpose of gratification of the person taking the picture, and of course, that's subjective."

'Vague' statutes being misapplied

Raymond Vasvari, legal director of the ACLU of Ohio, said such decisions are driven by societal fears and can have damaging consequences for innocent people.

"It's a fear of prurience and uneasiness about child sexuality and nudity coupled with an ever-vigilant state prying into our personal lives," he said.

Vasvari said the Stewart case is an example of "vague" statutes being misapplied by zealous prosecutors.

"Politically minded prosecutors take the ball and run," he said. "They won't show the pictures to the public, and [the prosecutor] gets to characterize them as pornography and no one can call him on it. So you have the additional mystery of the pictures coupled with the public's tendency to believe the worst."

Family traumatized by charges

The Lorain County Prosecutor's Office did not return phone calls seeking comment.

Attorney David Ruhnke -- who successfully defended a New Jersey father, Ejlat Feuer, charged in a similar 1994 pornography case -- said even if these current cases do not go to trial, the damage to the families already has been done. Charges eventually were dropped against Feuer, a photographer from Bernardsville, but Feuer and his family were seriously traumatized by the ordeal, Ruhnke said.

"If someone sees something [and] views it as a problem, he tells cops, who go to prosecutors. The cops say we'll arrest everybody and then it's the court's problem. But it ruins lives and separates families," he said. "They say, 'Let's find out what going on here,' and it's usually nothing."

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